Attorney Marc Williams was right in the middle of a legal challenge of how West Virginia conducted its impeachment proceedings against Supreme Court justices a few years ago.
Now, as West Virginia voters consider an amendment that would restrict such challenges, he isn’t wild about the potential constitutional change.
“The Legislature wants to change the state Constitution because they didn’t like it when an independent panel of the Supreme Court of Appeals said that impeaching all five of the justices violated due process, violated the separation of powers and failed to comply with their own rules for impeachment,” Williams, a Huntington lawyer, said this week.
“Amendment 1 is a complete waste of time and is bad public policy. The last thing we need is to give unlimited power to any one branch of government. This amendment violates all concepts of checks and balances.”
What does Amendment One do?
The proposed Amendment One on West Virginia ballots this fall would clarify that the judiciary has no sway over the legislative branch’s impeachment powers.
It’s one of four constitutional amendments that West Virginia voters are being asked to consider. Early voting starts Oct. 26, and Election Day is Nov. 8.
Amendment One would add language to the Constitution to say, “No court of this state has any authority or jurisdiction, by writ or otherwise, to intercede or intervene in, or interfere with, any impeachment proceedings of the House of Delegates or the Senate conducted hereunder; nor is any judgment rendered by the Senate following a trial of impeachment reviewable by any court of this state.”
The question arose when West Virginia’s Legislature impeached the entire state Supreme Court in 2018 over a range of financial issues. Justice Margaret Workman sought to halt impeachment trial proceedings in the state Senate. Her lead attorney was Marc Williams.
Workman’s lawsuit challenged whether lawmakers appropriately followed their own procedures and raised a separation-of-powers issue over the court system’s own constitutional authority over its finances.
The second issue boiled down to this: If the judiciary is an independent branch of government with powers that include authority over the court system’s budget then can a separate branch of government, the Legislature, pursue impeachment charges over financial matters?
As the challenge was being considered, West Virginia’s actual Supreme Court justices recused themselves and a set of circuit judges sitting in as the Supreme Court ruled in favor of Workman.
The fill-in court addressed the question of its authority, saying that while impeachment is clearly a legislative power there needs to be a stopgap when questions arise over whether legislative oversight has sloshed into the judiciary.
“Fundamental fairness requires this court to review what has happened in this state over the last several months when all of the procedural safeguards that are built into this system have not been followed,” the judges wrote.
“In this case, there has been a rush to judgment to get to a certain point without following all of the necessary rules. This case is not about whether or not a Justice of the Supreme Court of Appeals of West Virginia can or should be impeached; but rather it is about the fact that to do so, it must be done correctly and constitutionally with due process.”
That highlighted another question now in front of West Virginia voters: If the constitution gives the power of impeachment specifically to the legislative branch then can another branch, the judiciary, interfere?
What’s the argument for adopting the amendment?
Senate Judiciary Chairman Charles Trump, R-Morgan, concludes the Constitution already clearly assigns impeachment power to the Legislature and no one else. But Trump says the amendment is necessary to make sure that’s explicit.
“I hope our state never has to go through again impeachment of judicial officers; that was horrible,” Trump said this week. “But the process for it, which the Constitution gives us, should be followed in all cases.
“The point of this amendment is to restore what was and is the proper constitutional balance and separation of powers, which the judiciary in 2018 disregarded. It’s to keep the branches of government in their own lanes.”
What’s the argument against it?
Not everyone agrees the amendment is wise.
Julie Archer, coordinator of West Virginia Citizens for Clean Elections, describes the proposed amendment as overreach.
“This amendment would make it so that no court in the state could intervene to protect the right to a fair hearing of a public official facing impeachment, no matter how frivolous the charge or constitutionally flawed the process,” Archer said.
She contends the amendment is not needed to restore or protect the Legislature’s authority in impeachment proceedings.
“If adopted, this amendment would open the door to blatant abuses of power by the legislative branch by cutting loose future impeachment proceedings from all constitutional restraint, potentially denying a public official faced with impeachment their right to due process,” Archer said.
“In the hands of a partisan majority, this new power could be abused to oust political opponents without cause, thereby eroding existing checks and balances between the three branches of government and undercutting public trust in the political process.”
What would the Constitution say?
With the adoption of Amendment One, the Constitution would say this:
ARTICLE IV.
§9. Impeachment of officials.
Any officer of the state may be impeached for maladministration, corruption, incompetency, gross
immorality, neglect of duty, or any high crime or misdemeanor. The House of Delegates has the sole
power of impeachment. The Senate has the sole power to try impeachments and no person shall be
convicted without the concurrence of two thirds of the members elected thereto. When sitting as a
court of impeachment, the Chief Justice of the Supreme Court of Appeals, or, if from any cause it be
improper for him or her to act, then any other judge of that court, to be designated by it, shall preside;
and the senators shall be on oath or affirmation, to do justice according to law and evidence. Judgment
in cases of impeachment does not extend further than removal from office, and disqualification to hold
any office of honor, trust or profit, under the state; but the party convicted remains liable to indictment,
trial, judgment, and punishment according to law. The Senate may sit during the recess of the
Legislature for the trial of impeachments. No court of this state has any authority or jurisdiction, by writ
or otherwise, to intercede or intervene in, or interfere with, any impeachment proceedings of the House
of Delegates or the Senate conducted hereunder; nor is any judgment rendered by the Senate following
a trial of impeachment reviewable by any court of this state.